[Mirror] Soliman, Miguel Paolo

Summer 2011

Blog entry 1 … searching

“Crime” of Photographers.

In this modern day and age, the commercial industry has boomed in numbers, and has steadily risen in number these past few years. With such increase, technology has taken a rapid surge in advances, making life for people easier and faster at the same time. Cameras have shared this fortune, and have become an indispensable tool for people to capture and store their memories for a long time.

An issue has now risen regarding the practice of taking a picture, ergo, if you take a picture, then the trademark or logo of a company is shown clearly in the background, is there an infringement of RA8293 committed by those who took the said picture?

The answer is no. First, there is no copyright infringement involved in this case because such picture taken by the photographer is considered “fair use” under Sec. 185 of RA 8293 on Intellectual Property Code of the Philippines. In “fair use”, we have to consider the following factors:

  1. Purpose and character of the use, including whether such use is of a commercial in nature or is for non-profit educational purposes;
  2. Nature of the copyrighted work;
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. Economic impact of the copyrighted work.

The purpose of the picture taken and the character in which it is used is private in nature, exclusively for the enjoyment and memory of the photographer. The intent is to create a lasting memory of the moment, not to sell it to anyone in the public. The amount and substantiality of the portion of the alleged trademark or logo of the company that is depicted in the picture is so minimal, that it can only be considered incidental to the whole scenery; at most, only a landmark to easily determine where the subjects of the photographer are and the event that took place in the picture. Finally, the economical impact of this copyrighted work to the trademark/logo of the company alleged to be violated of its right under the IPL is mediocre, if not non-existent. The photographer does not desire to sell any products using the trademark/logo of the company, nor does he/she wants to confuse the public of a connection/affiliation with the said company using the said mark/logo.

Hence, the illusion in which the company wants to attach liability to the photographer is farfetched and must not be given a second thought, given the power of the law that discredits such claim in the matter.

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